Brief of Amicus Curiae of CEI, Cato Institute et al. in United States v. Microsoft

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This Court can reach the right decision and do so the right way by giving careful legal characterization to all the circumstances in this case. That is a challenge—and the case is before this Court—because digital materials and contexts interact slightly differently with otherwise familiar law and legislation.

This case has developed with little, if any, consideration of the legal interests of Microsoft customers. Those interests are established by privacy policies and Terms of Service documents. Microsoft provides its services subject to promises that allocate property rights in the data and communications produced during and by the use of the services. Microsoft maintains some rights to use data and the right to possess it, while the customer holds most rights to exclude others, to use the data, to sell it, and so on.

Awareness of the customer’s property interest helps clarify that the mandatory information collection process established by the Stored Communications Act (“SCA”) is properly conceived of as a warrant. Congress correctly characterized it as such.

Although historical practice and legal precedents are not a model of clarity, warrants and subpoenas occupy different spheres of compelled disclosure, distinguished by the opportunity of the interested party to contest the procedure. A subpoena asks the interested party for his or her own materials (or presence) and thus naturally provides him or her the opportunity to object before disclosure. A warrant is required when a similar process is executed without the knowledge—or over the contemporaneous objection—of the person affected. The warrant requirement appropriately controls misuse of that process.

Both the SCA and the Constitution require the approval of a neutral magistrate when law enforcement seeks customer communications from service providers such as Microsoft. But in other realms over the last century, administrative business practices and digitization have confused subpoena and warrant practice. Many more materials have moved into the hands of third-party service providers, which have become repositories of documents and information in which their customers maintain acute personal and real legal interests. The “third-party subpoena” now allows government agents access to private information in amounts that would have been beyond the Framers’ imagination and that would have required a warrant to amass in their time.

To rationalize what has happened in this case, the Court should recognize that, in the digital context, possession is often separate from other property rights, such as the right to exclude. That right is “one of the most essential sticks in the bundle of rights that are commonly characterized as property.” Kaiser Aetna v. United States, 444 U.S. 164, 176 (1979); see also Dolan v. City of Tigard, 512 U.S. 374, 384 (1994); Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1044 (1992); Nollan v. Calif. Coastal Comm’n, 483 U.S. 825, 831 (1987). This Court can and should help refine the subpoena and warrant categories by acknowledging the property interests people maintain in digital materials that they don’t always or necessarily possess.

Precise understanding of the technology and interests at stake also makes clear that an SCA order to retrieve data from an overseas server is extraterritorial. Just as an order to throw a rock over the Canadian border produces a result in Canada, an SCA warrant related to overseas data produces extraterritorial results. In terms of the statute’s “focus,” an SCA warrant order affects the Microsoft customer’s privacy at the location and time of the copying, because his or her right to exclude others is compromised when the copy is made and sent. If the SCA’s “focus” is regarded as disclosure, the warrant affects the stored communications at the location and at the time of copying because the warrant is an essential step in the process of disclosing. In other words, regardless of how the larger doctrines apply, an SCA warrant aimed at overseas data is extraterritorial.

One might argue that, because contracts for digital communications services typically do allow information sharing in response to valid legal processes, they do not allocate a property interest to the customer when legal processes such as the SCA’s are invoked. But the only way to give meaning to all contract terms is by reading them as requiring processes to have legal validity, not just adherence to legal or legislative formalities.

Another narrow argument is that denying the SCA extraterritorial reach would allow service providers to place data offshore for illegitimate purposes, such as to assist a criminal or criminal enterprise in evading U.S. law. Such an agreement would likely violate the law itself and be voided as contrary to public policy, a classic black-letter contracts concept. The beneficiary of the arrangement could not enjoy the property rights purportedly created by it, and the information could be retrieved without a warrant.

In sum, by knitting the modern digital context together with timeless principles of Anglo-American law, this Court can reach a decision that: (1) maintains continuity in the law and legal expectations, (2) avoids line-drawing and policymaking, (3) eschews inventing or extending doctrines without foundation in statutory language or constitutional text, and (4) provides justice to the parties. Crucially, the Court can provide lower courts with the tools they need to fuse existing law to the burgeoning digital environment.

Read the full Amicus Brief here.